Wednesday, November 07, 2007

"Emergency" as Institution Laundering

As the "emergency" extraconstitutional martial law regime of Pakistani dictator Pervez Musharraf enters its fifth day, more people in the United States have started to react. Most of these reactions -- whether forceful, equivocal, or barely audible -- have emphasized the importance, above all else, of making sure that the elections scheduled for January stay on track. But what happens when Musharraf and his banker-henchman-in-chief, Shaukat Aziz, lift the "emergency" and announce a date for elections, as they invariably will? Will critics then breathe a sigh of relief, celebrate the "restoration of Pakistan's progress towards democracy," and move on?

If so, then all of these Western critics will have been hoodwinked, and Musharraf will have achieved a near-complete victory. The purpose of Musharraf's extraconstitutional move to hold the constitution "in abeyance" is not to prevent elections from ever taking place, or even necessarily to delay them at all. Rather, the point of Musharraf's imposition of martial law is a more thoroughgoing "laundering" of Pakistan's civil society institutions -- including the judiciary, media, and mainstream political parties -- in order to flush out any capacity they might have to serve as independent checks on his power. By itself, simply urging Musharraf to hold elections on schedule -- or in the case of the Bush administration, gently suggesting that Musharraf think about that possibility if he's bored and there's nothing good to watch on television -- is relatively meaningless. After all, when it comes to rigging elections, Musharraf has an enviable track record. Indeed, at least nominally even the current, outgoing national and provincial assemblies in Pakistan themselves were "elected." And of course, strong civil society institutions would not be any less important after the election of civilian leaders.

Permitting Musharraf to succeed in his effort to launder the Pakistan judiciary could have far-reaching consequences, as this dispatch from Karachi suggests:

The [Provisional Constitutional Order] ensured that the best, most qualified judges of the Supreme Court and the High Courts were removed from their posts and placed under house arrest, but not before a final act of defiance that declared the PCO as illegal and unconstitutional. The few remaining members of the superior judiciary, who chose (or were pressured) to take a new oath under the PCO, have lost all legitimacy and are facing a boycott from lawyers. However, as a lawyer friend perceptively pointed out, the real threat comes from the new class of politically opportunist and ill-trained judges who will now be inducted en masse into the superior judiciary based on their loyalties to the ruling coalition. The consequences of this move are far-reaching and will affect a whole generation, though we are already beginning to see some indications. A small news item in today’s papers mentions a district judge in Sukkur who received a dismissal notice on Monday from the Sindh High Court immediately after issuing a show cause notice to an SHO (police official). The message is clear: courts are no longer empowered to question or interfere with the functioning of any executive agency. [via CM]

A more meaningful response, reflected, for example, in the statement issued today by the New York City Bar Association, would insist upon the full restoration of the rule of law as it had been emerging rather forcefully before the events of November 3. (Of course, this being a "coup within a coup," an even stronger response would insist upon restoring the Constitution as it existed before the events of October 12, 1999, as called for by the Charter of Democracy. But let's take things one step at a time.) That means adhering to the Pakistan Supreme Court's unprecedented ruling (click on the image to the right for its text) that Musharraf's extraconstitutional decrees are unlawful and that anyone who acts to implement them is, at minimum, punishable for contempt of court. (Initially, Musharraf's "pocket judges," as opposition leader Imran Khan calls them in the above video, tried to deny that the Supreme Court had issued any such ruling at all. However, once the Court's order had been printed in newspapers and circulated all over the planet, the Pocket Court fashioned a new claim: that the order was a nullity because the justices who refused to swear new oaths of allegiance were no longer, in fact, judges at all. Watch this short video to see Shaukat Aziz coolly holding forth -- mostly in English, so clearly for Western consumption -- on the Alice-in-Wonderland-like legal principles underlying Musharraf's extraconstitutionalism.) It also means insisting upon reinstatement of the many judges who courageously have refused to violate their current oaths of office by taking new oaths of allegiance to Musharraf's martial law regime and, in most cases, have been thanked for their trouble with arrest.

Critics who emphasize the importance of holding elections are by no means wrong to do so. After all, free and fair elections are critically important to the restoration of democracy and civilian rule in Pakistan. But to focus exclusively on delayed elections as the primary harm arising from Musharraf's imposition of martial law seems manifestly to miss the point. Critics inclined to do so should be careful what they wish for -- or more to the point, they should be careful not to wish for too little.

* * *

Meanwhile, the Bush administration has continued to respond forcefully and with an enormous sense of outrage and concern. A senior State Department official today escalated the Administration's rhetoric, blasting Musharraf as "indispensable."

Clearly no constitution that allows the President to be the head of the military can be legitimate.

I certainly agree with this as a matter of philosophy, but at the same time, I think the question is important here.

If it turns out the constitution in its current form *does* allow him to hold both posts, it can hardly be said that he's violating that fundamental law by doing so. Pakistanis might think his choice is unwise, but they wouldn't be able to say he broke the law. In other words, he would retain some level of legitimacy, I think.

If it is allowed, then certainly the Pakistani constitution can be improved -- but Musharraf would have ample cover if he's able to say he's not acting illegally.

[I realize this is a small point anwyay, since the consensus seems to be that the emergency order itself *IS* plainly unconstitutional].

"Can somebody explain whether the Pakistani constitution allows him to be president and army head? Do we know how that ruling would have gone?"

The Pakistanti constitution does not. And Musharraf imposed his little "emergency" upon hearing that the Supreme Court- which was hearing cases which argued that Musharraf's October "re-election" was illegal- was going to rule against him. This is the reason why the Supreme Court has been aggressively targeted.

That was a bit of sarcasm on my part, as (as I am sure you know) the President of the United States is also the head of the US Military. I don't think that makes the U.S. an illegitimate democracy. Does the fact that one wears a uniform and one wears a suit really matter? I really cannot see that it does.

What matters, to me at least, is whether the Military is used o suppress constitutional rights of the people (as has certainly happened - and continues to happen in a lesser degree - in our history as well).

I was thinking more in terms of a system where the military runs things co-equally with the civilian authority. Or one where the military is superior.

In the U.S., the president is commander in chief specifically to ensure that the armed forces are held accountable to civilian (and elected) leadership.

In places like Pakistan, where the army is arguably the most powerful autonomous institution, the fear is that power can flow the other way -- so you end up in a permanent military state. Anyway, that was what I meant "philosophically".

Again, sorry for being too dense to pick up on your point. duh.

In any case, I still think it's important to know whether it's allowed under Pakistan's constitution.

I think the distinctions you are drawing are one of custom. It is a mistake to think the the U.S. armed forces are not the single most powerful autonomous institution in our country. Again, at certain times in our history that institution has been directed against our own people. Lincon's use of our armed forces - which clearly at this point worked out "for the greater good" was highly suspect and really not substantially different from Musharraf's current use. Roosevelt's use of our military against Japanese Americans was similarly repugnant.

So, again, to me, it comes down to use, not some formalistic "is Musharraf wearing a general's uniform?" check box.

Bush has been pushing on some of those limits himself and it is not far fetched to me, if the current trend in concentration of executive power continues unchecked that our current custom of not using our military against our own citizens and institutions could come to an end (though hopefully short lived end).

It is a mistake to think the the U.S. armed forces are not the single most powerful autonomous institution in our country.

I understand the point. But because our constitution puts checks on that power that have more or less withstood time (so far), I think the U.S. model is different. Those checks were put in place by a group of founders very suspicious of standing armies.

With Pakistan, as I understand it (somebody correct me where I'm wrong), the military has often been an institutional player in the constitutional inception process itself.

So on some rough level, that's the equivalent of the United States military sending delegates to the constitutional convention.

And I guess I could ask it this way: couldn't one reasonably say that a primary cause of Pakistan's inability to make a constitution stick is the military's (army, Intelligence, etc.) undue influence?

I believe our checks and balances have nothing to do with it. To the contrary, in our history, when the Federal executive has chosen to overstep the restraints placed upon it by our system, it gets away with it. What keeps our military in check is our own cultural norms. If Bush ordered the Military to act as Musharraf is acting it would likely ignore him. Likely - but maybe not. I'd like to think it would. If the trend in executive power continues, however, it is not hard to envision a United States where the cultural norms have change sufficiently to allow it.